2006 Supreme(SC) 908

2006(8) Supreme 171
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Kailash—Appellant
versus
State of M.P.—Respondent
Criminal Appeal No. 238 of 2006
Decided on 29-9-2006
Counsel for the Parties :
For the Appellant : Uday Umesh Lalit, Sr. Advocate, Jai Prakash Pandey, Advocate.
For the Respondent : Siddhartha Dave and Ms. Vibha Datta Makhija, Advocates

IMPORTANT POINT
Where circumstances proved that accused had no intention to cause death of deceased, if single blow was given by axe on the head, offence would fall u/s 304 Part II IPC and not u/s 302 IPC.

Headnote:Indian Penal Code, 1860—Section 302—Appellant convicted under where as other two accused were acquitted by trial Court—Appellant with other two accused armed with axe, lathi and musal came to house of deceased and asked him not to construct wall on their land—Deceased asserted that land belonged to him—Appellant gave a blow by axe on his head and deceased died after two days in hospital—Trial Court and High Court relied upon testimony of eye witness PW3 and convicted appellant for murder—Appeal—Medical evidence did not tally with ocular evidence as doctor opined that injury was caused by hard and blunt substance—When ocular evidence is found to be inconsistent with medical evidence, question of relying upon one or the other would depend upon facts and circumstances of each case—Importance of infliction of one injury to be judged on touch stone of other circumstances in the case—Circumstances showed that appellant had no intention to cause death of deceased—Appellant could not be held guilty of offence u/s 302 IPC but u/s 304 Part II IPC—Sentence of 7 years imprisonment awarded.

       Held : A holistic view of the matter in a case of this nature, in our opinion, was required to be taken. The learned Sessions Judge and the High Court proceeded on the basis that the deceased suffered an incised wound. As a logical corollary the offence is said to have been committed by the Appellant. When, however, oral evidence is found to be inconsistent with the medical evidence, the question of relying upon one or the other would depend upon the facts and circumstances of each case. No hard and fast rule can be laid down therefor.(Para 29)

       The importance of infliction of one injury in this case must be judged on the touchstone of the following circumstances :

       (i) For all intent and purport, the deceased appeared to have accepted, as would appear from the evidence of PW-2, that the wall was being constructed on the land of the Appellant.

       (ii)Despite quarrel having been going on between the parties for about a week, construction of the wall commenced early in the morning and by the time the accused came to know thereof, wall to the height of four feet had already been raised.

       (iii)The deceased, if PWs 2 and 3 are to be believed, put forth a contention that as construction had already been raised, he was not in a position to demolish the same.

       (iv)Admittedly, there had been abuses from both sides followed by a quarrel.

       (v)Under what circumstances, injuries were caused on Babulal is not known.

       (vi)Despite such grievous injuries having been found on the person of the deceased by all the accused, they were not apprehended.

       (vii)Babulal was allowed to go ahead of the prosecution witnesses to police station.

       (viii)A First Information Report was lodged by him.

       (ix)According to the defence, Babulal had also suffered injury. The injury on the person of the Babulal had not been explained. The injuries on his person might have been simple but the same was required to be explained keeping in view of the fact that the Appellant had raised a plea of self-defence.

       (x)In a case of this nature, where one of the accused had suffered an injury, the prosecution in all fairness should have brought on records the materials found during investigation of both the cases.

       (xi)It is not the case of the prosecution that there had been a premeditation.

       (xii)Babulal and Prakash, if the prosecution case was to be believed, also could have been convicted under Section 302/34 of the Indian Penal Code. The fact that they were not found guilty under the aforementioned provisions goes to show that they were not involved in the matter.

       (xiii)If, thus, there exists a doubt in view of the deposition of PW-11 that under no circumstances the injury could have been caused by a sharp cutting weapon, the Appellant must have hit the accused from the blunt side of the axe.

       This itself goes a long way to judge as to whether the Appellant had any intention to cause the death of the deceased.(Paras 31 to 33)

       Although a case in regard to exercise of right of private defence has not been established, we are of the opinion that there are sufficient materials on record to establish that the deceased suffered a single blow at the hands of the Appellant on a sudden provocation and without any pre-meditation.(Para 39)

       Applying the aforementioned principles of law, we are of the opinion that the Appellant cannot be held to be guilty of commission of an offence under Section 302 of the Indian Penal Code but under Section 304, Part II of the Indian Penal Code. The Appellant is, in the peculiar facts and circumstances of the case, sentenced to undergo rigorous imprisonment for a period of seven years. The appeal is allowed to the aforementioned extent.(Para 44)